From The Texas Tribune:
In January 2022, Elvie Kingston’s dementia took a turn for the worse. The 76-year-old millionaire and longtime conservative activist was declared by a doctor to be partially incapacitated, after which she signed legal documents that removed her family’s right to make decisions about her health and finances.
Two years later, those powers remain almost entirely in the hands of a state Supreme Court justice and his wife.
Justice John Devine has said Kingston is essentially family. In public political appearances, he’s described their relationship as loving — like mother and son — and said he and others helped rescue Kingston “from a really dire situation.”
But legal experts say Devine’s control of Kingston’s trust is a clear violation of Texas ethics rules that prohibit judges from overseeing the trust or estates of non-family.
At the same time, his wife, Nubia, serves as Kingston’s legal guardian. The arrangement gives the Devines broad control over Kingston’s personal, financial and medical decisions — despite objections from Kingston’s niece and three of her friends, who say she was once close with the Devines but, in the years before her mental health declined, made it clear that she didn’t like or trust them.
“She didn’t want anything to do with them,” said Dorothea Hosmer, who said she has been Kingston’s close friend for 25 years. “So when I found out John Devine basically has control of her, I was dumbfounded.”
Devine didn’t respond to requests for comment for this story. But publicly he has shared pictures of him and his family eating meals with Kingston, dancing and traveling together, and brushing her hair.
“My commitment to [Kingston] was (that) as long as she could enjoy life, we would protect her and keep her,” he said of him and his wife.
In August 2022, Kingston’s niece, Michelle Hartman, filed a complaint against John Devine with the State Commission on Judicial Conduct, accusing him of flagrantly violating the judicial ethics code and using her aunt’s trust for his own financial benefit. The commission declined to comment on the complaint or confirm any related investigation.
In court filings, however, Nubia Devine accused Hartman of trying to exploit her aunt’s finances. She said, under Hartman’s watch, Kingston was living in squalid conditions that posed an “imminent danger” to her health and necessitated that Nubia Devine step in.
John Devine said through an attorney that he has fully complied with all disclosure requirements as set out in the trust and under Texas law. Nubia Devine and her attorney did not respond to requests for interviews or a detailed list of questions.
A spokesperson for the Texas Supreme Court said “the court is aware of the claims involving Justice Devine and has no comment on the matter.” The court did not respond to a follow-up question about whether any exemption was granted to Devine that would allow him to continue serving in that role.
The Texas Code of Judicial Conduct states that “a judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties.”
Devine has for years faced questions about his ethics as a judge. He is one of three Republicans on the all-GOP Supreme Court who is up for reelection this year, running against Harris County District Court Judge Christine Weems.
Ethics concerns
Earlier this year, Devine was confronted by a private media firm working for his GOP primary opponent about his relationship with Kingston. He denied that he was violating ethics rules because they considered each other family. “She’s held me out to be her son for 30 years,” he said, according to a video of the exchange.
Legal and judicial ethics experts disagree. “The rules are pretty clear,” said Heather Zirke, director of the Miller Becker Center for Professional Responsibility at the University of Akron School of Law. “A judge can serve in that capacity for their own family. But serving as a trustee or administrator for a non-family member still creates the potential for a conflict of interest and serving as a trustee or administrator for a non-family member is prohibited by the Code of Judicial Conduct.”
It’s unclear what compensation John and Nubia Devine may derive from their roles with Kingston’s affairs, but as of 2007, they were not listed as beneficiaries of her trust, court records show. The trust dictates that if Kingston were declared incapacitated, her care would be funded from the trust, at the discretion of the trustee. Since 2022 — the year Kingston moved in with the Devines — Nubia Devine’s occupation has been listed as “caretaker” on her husband’s personal financial disclosures.
Zirke and two other legal experts said Devine’s oversight of Kingston’s trust raises a litany of other concerns about conflicts of interest that they said could undermine the broader credibility of the courts.
Texas’ judicial code explicitly demands that judges avoid even the appearance of impropriety. But as a justice, experts said, Devine could end up ruling on cases that affect trust law or the tens of thousands of dollars in monthly oil royalties included in the trust.
“The judiciary runs on public confidence,” said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts, a nonprofit that focuses on improving the judiciary. “Any time you have a judge in a situation where they are interacting with the legal or financial world, it makes you wonder if their title and their power force others to pull punches.”
The Kingston case marks the latest questions about John Devine’s judicial ethics dating back to his time as a Harris County district judge in the 1990s, when he was sanctioned by the State Commission on Judicial Conduct for hosting a campaign event in his chambers. In 2002, Devine also had to correct eight years of financial disclosures after the Texas Ethics Commission found that he had failed to note his position as the president of a real estate company.
In March, he narrowly survived a Republican primary in which his opponent attacked him for, among other things, missing more than half of oral arguments before the court last year as he campaigned for reelection, and recently auctioning off tours of his chambers for a GOP fundraiser.